Can Employers Use Paid Meal Breaks to Offset Unpaid Donning and Doffing Time Under the FLSA?

Yes – according to a recent federal court decision in Pennsylvania, an employer can take an offset for payments for non-working meal breaks against any claims for unpaid donning and doffing time.

In Smiley v. E.I. Du Pont De Nemours and Co., the plaintiffs alleged that they were not paid for donning and doffing time before and after their shifts in violation of the Fair Labor Standards Act (FLSA). No. 3:12-cv-2380 (M.D. Pa., Nov. 5, 2014). The employees typically worked 12-hour shifts, during which they received three thirty-minute meal breaks, which the employer paid even though it was not required to do so under the FLSA. The employer argued that because the paid meal breaks exceeded any amount of payment allegedly due for donning and doffing, it could not be held liable. The court agreed.

The court explained that, although the FLSA does not specifically authorize offsets of paid non-work time for unpaid work time, offsets are only precluded in two circumstances. First, an employer may not take an offset for any payment that is excluded from the employee’s “regular rate of pay” for purposes of calculating overtime. Second, an employer cannot take an offset if the parties agreed to treat the non-work time as “hours worked” for FLSA purposes. If neither of these conditions applies, an offset may be permissible.

In Smiley, the court held that an offset was permissible for the paid meal breaks. There was no dispute that the employer included the paid meal breaks in the employee’s regular rate of pay, nor was there any evidence that the parties agreed to treat the meal breaks as hours worked. Because the paid meal break time exceeded the amount of time the employees spent donning and doffing, the court determined there was no liability under the FLSA and granted the employer’s motion for summary judgment.

Takeaway: In limited circumstances, an employer may take an offset for paid non-work time against unpaid work time, precluding liability under the FLSA.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on November 13, 2014, in Wage and Hour and tagged . Bookmark the permalink. Comments Off on Can Employers Use Paid Meal Breaks to Offset Unpaid Donning and Doffing Time Under the FLSA?.

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